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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

9 FLRA No. 40
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
JACKSONVILLE DISTRICT
Respondent
Case No. 4-CA-498
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
JACKSONVILLE AND ATLANTA DISTRICTS
Respondent
Case No. 4-CA-561
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION. THE JUDGE FOUND THAT THE RESPONDENT HAD NOT ENGAGED
IN CERTAIN OTHER ALLEGED UNFAIR LABOR PRACTICES AND RECOMMENDED
DISMISSAL OF THE COMPLAINT WITH RESPECT TO THEM. THEREAFTER, THE
RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION, AND THE CHARGING
PARTY FILED A BRIEF IN RESPONSE THERETO.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
THE JUDGE FOUND THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND
(8) OF THE STATUTE BY VIRTUE OF ITS ACTIONS IN REFUSING TO PROVIDE
NATIONAL TREASURY EMPLOYEES UNION (NTEU) REPRESENTATIVES CALVIN
BARNLUND, WAYNE PIERCE AND ORVILLE GUINN OFFICIAL TIME AND/OR PER DIEM
AND TRAVEL EXPENSES AS APPROPRIATE IN CONNECTION WITH THEIR
PARTICIPATION IN COLLECTIVE BARGAINING NEGOTIATIONS HELD ON MAY 15 AND
JUNE 17, 1980. HE FURTHER FOUND THAT, CONTRARY TO THE ALLEGATIONS OF
THE COMPLAINT IN CASE NO. 4-CA-561, AND IN THE ABSENCE OF ANY COGENT
ARGUMENT IN SUPPORT THEREOF, THE RESPONDENT'S ACTIVITIES DID NOT ALSO
CONSTITUTE A SEPARATE VIOLATION OF SECTION 7116(A)(5) OF THE STATUTE.
ACCORDINGLY, HE RECOMMENDED THAT THIS ALLEGATION OF THE COMPLAIN BE
DISMISSED.
BASED ON THE AUTHORITY'S INTERPRETATION AND GUIDANCE, 2 FLRA
264(1979) AND BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION,
DEPARTMENT OF THE TREASURY, SAN FRANCISCO CALIFORNIA, 4 FLRA NO.
40(1980), ENFORCE, 672 F.2D 732(9TH CIR. 1982), THE AUTHORITY CONCLUDES,
IN AGREEMENT WITH THE JUDGE, THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1) AND (8) OF THE STATUTE AS ALLEGED IN THE COMPLAINT. THE
AUTHORITY FURTHER ADOPTS THE JUDGE'S CONCLUSION AND RATIONALE THAT THE
RECORD FAILS TO SUPPORT A FINDING THAT THE RESPONDENT'S CONDUCT ALSO
VIOLATED SECTION 7116(A)(5) OF THE STATUTE IN THE CIRCUMSTANCES OF THIS
CASE.
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE RESPONDENT DEPARTMENT OF TREASURY,
INTERNAL REVENUE SERVICE, JACKSONVILLE AND ATLANTA DISTRICTS SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE CALVIN BARNLUND, WAYNE PIERCE AND
ORVILLE GUINN, OR ANY OTHER BARGAINING UNIT EMPLOYEES, WHILE ENGAGED IN
REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, DURING NEGOTIATION OF A COLLECTIVE BARGAINING
AGREEMENT, OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY
TRAVEL TIME DURING THE EMPLOYEES' REGULAR WORK HOURS AND WHEN THE
EMPLOYEES WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN
ADDITION, NECESSARY TRANSPORTATION AND PER DIEM EXPENSES SHALL BE PAID
BY THE ACTIVITY.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) PROVIDE UNION REPRESENTATIVE WAYNE PIERCE OFFICIAL TIME FOR THE
PERFORMANCE OF HIS COLLECTIVE BARGAINING DUTIES ON MAY 14 AND 15, 1980,
AND MAKE HIM WHOLE FOR ANY ANNUAL LEAVE HE MAY HAVE UTILIZED ON SUCH
DATES, AND PAY TO WAYNE PIERCE AND UNION REPRESENTATIVES CALVIN BARNLUND
AND ORVILLE GUINN WHATEVER TRAVEL AND PER DIEM EXPENSES AN EMPLOYEE
ENGAGED IN OFFICIAL AGENCY OR ACTIVITY BUSINESS WOULD BE ENTITLED TO.
(B) POST AT ITS VARIOUS OFFICES IN THE ATLANTA AND JACKSONVILLE
DISTRICTS WHEREIN UNIT EMPLOYEES ARE LOCATED, COPIES OF THE ATTACHED
NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE JACKSONVILLE AND ATLANTA DISTRICTS, RESPECTIVELY, AND
SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION IV, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE SECTION 7116(A)(5) ALLEGATION OF THE
CONSOLIDATED COMPLAINT BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JUNE 30, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO PROVIDE TO CALVIN BARNLUND, WAYNE
PIERCE AND ORVILLE GUINN OR ANY OTHER BARGAINING UNIT EMPLOYEES, WHILE
ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING NEGOTIATIONS OF A COLLECTIVE
BARGAINING AGREEMENT, OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING
NECESSARY TRAVEL TIME AS OCCURS DURING THE EMPLOYEES' REGULAR WORK HOURS
AND WHEN THE EMPLOYEES WOULD OTHERWISE BE IN A WORK OR PAID LEAVE
STATUS. IN ADDITION, WE WILL NOT FAIL OR REFUSE TO PROVIDE NECESSARY
TRANSPORTATION AND PER DIEM EXPENSES TO BARGAINING UNIT EMPLOYEES
ATTRIBUTABLE TO SUCH PARTICIPATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL PROVIDE UNION REPRESENTATIVE WAYNE PIERCE OFFICIAL TIME FOR
THE PERFORMANCE OF HIS COLLECTIVE BARGAINING DUTIES ON MAY 14 AND 15
1980, AND MAKE HIM WHOLE FOR THE ANNUAL LEAVE HE MAY HAVE UTILIZED ON
THE ABOVE DATES, AND PAY TO CALVIN BARNLUND, WAYNE PIERCE AND ORVILLE
GUINN WHATEVER TRAVEL AND PER DIEM EXPENSES EMPLOYEES ENGAGED IN
OFFICIAL AGENCY OR ACTIVITY BUSINESS WOULD BE ENTITLED TO.
(AGENCY OR ACTIVITY)
DATED:
BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION IV, WHOSE
ADDRESS IS: 1776 PEACHTREE STREET, N.W., SUITE 501, NORTH WING,
ATLANTA, GA. 30309, AND WHOSE TELEPHONE NUMBER IS (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
ROBERT FINER, ESQUIRE
HARRY G. MASON, ESQUIRE
FOR THE RESPONDENT
LINDA J. NORWOOD, ESQUIRE
BRENDA S. GREEN, ESQUIRE
FOR THE GENERAL COUNSEL
JOYCE F. GLUCKMAN
FOR THE CHARGING PARTY
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
SECTION 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER,
FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV,
PART 2411, ET SEQ.
PURSUANT TO CHARGES FILED ON JULY 2, 1980 AND AUGUST 22, 1980, IN
CASE NOS. 4-CA-498 AND 4-CA-561, RESPECTIVELY, BY THE NATIONAL TREASURY
EMPLOYEES UNION, (HEREINAFTER CALLED THE NTEU OR UNION), A CONSOLIDATED
COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON NOVEMBER 19, 1980, BY THE
ACTING REGIONAL DIRECTOR FOR REGION IV, ATLANTA, GEORGIA. THE
CONSOLIDATED COMPLAINT ALLEGES IN SUBSTANCE, THAT THE DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE AND ATLANTA DISTRICTS,
(HEREINAFTER CALLED THE RESPONDENT OR IRS), VIOLATED SECTIONS
7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, (HEREINAFTER CALLED THE STATUTE), BY VIRTUE OF ITS
ACTIONS IN REFUSING TO GRANT OFFICIAL TIME AND/OR PAY TRAVEL AND PER
DIEM EXPENSES TO THREE EMPLOYEES WHO PARTICIPATED AS NTEU
REPRESENTATIVES IN COLLECTIVE BARGAINING NEGOTIATIONS WITH VARIOUS
REPRESENTATIVES OF THE RESPONDENT.
A HEARING IN THE CAPTIONED MATTER WAS HELD ON DECEMBER 17, 1980, IN
JACKSONVILLE, FLORIDA. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN. THE PARTIES SUBMITTED
POST-HEARING BRIEFS ON JANUARY 30, 1981, WHICH HAVE BEEN DULY
CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, /1/ INCLUDING MY OBSERVATION OF
THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
FINDING OF FACT
THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF THE RESPONDENT'S
PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES WORKING IN THE IRS'S
JACKSONVILLE, FLORIDA AND ATLANTA, GEORGIA, DISTRICT OFFICES.
ON APRIL 17, 1980, THE REGIONAL DIRECTOR FOR REGION IV, FEDERAL LABOR
RELATIONS AUTHORITY, APPROVED A SETTLEMENT AGREEMENT BETWEEN THE NTEU
AND THE IRS JACKSONVILLE, FLORIDA, DISTRICT IN A PRIOR UNFAIR LABOR
PRACTICE PROCEEDING. IN THE SETTLEMENT AGREEMENT THE IRS AGREED TO
BARGAIN WITH THE NTEU WITH RESPECT TO THE IMPACT AND IMPLEMENTATION OF
ITS DECISION TO ESTABLISH SPECIAL GROUPS TO PROCESS TAX SHELTER CASES AT
IRS'S MIAMI, FORT LAUDERDALE AND NORTH DADE, FLORIDA LOCATIONS.
PURSUANT TO THE AFOREMENTIONED SETTLEMENT AGREEMENT, THE PARTIES
SUBSEQUENTLY AGREED TO MEET ON MAY 15, 1980, IN JACKSONVILLE, FLORIDA,
FOR PURPOSES OF NEGOTIATING THE IMPACT AND IMPLEMENTATION OF THE SPECIAL
TAX SHELTER GROUPS.
MR. TIMOTHY WELSH, THE NTEU ATTORNEY WHO WAS IN CHARGE OF THE
SCHEDULED NEGOTIATIONS FOR THE NTEU, REQUESTED MR. CALVIN BARNLUND, AN
IRS EMPLOYEE STATIONED IN ORLANDO, FLORIDA, AND MR. WAYNE PIERCE, AN IRS
EMPLOYEE STATIONED IN MIAMI, FLORIDA, TO SERVE AS MEMBERS OF THE NTEU
NEGOTIATING TEAM.
ON MAY 14, 1980, MR. BARNLUND LEFT ORLANDO, FLORIDA, AT ABOUT 7:45
A.M. AND DROVE HIS CAR TO JACKSONVILLE, FLORIDA. AFTER ARRIVING AT
JACKSONVILLE, FLORIDA, ABOUT 10:45 A.M., MR. BARNLUND ASSISTED THE IRS
REGIONAL COUNSEL IN THE PREPARATION OF A TAX COURT CASE FOR THE
REMAINDER OF THE DAY. MR. BARNLUND SPENT THE EVENING AT THE TRAVEL
LODGE MOTEL.
ON MAY 15, 1980, MR. BARNLUND ATTENDED AND ACTIVELY PARTICIPATED IN
THE SCHEDULED BARGAINING NEGOTIATIONS AS A MEMBER OF THE NTEU'S
NEGOTIATING TEAM. THE NEGOTIATIONS BEGAN AT 8:30 A.M. AND LASTED UNTIL
4:00 P.M. WITH A BREAK FOR LUNCH. MR. BARNLUND INCURRED BREAKFAST,
LUNCH AND DINNER EXPENSES ON MAY 15, 1980. ALTHOUGH NO FINAL AGREEMENT
WAS REACHED ON MAY 15, IT WAS MUTUALLY AGREED THAT THE NEGOTIATING
MEETING SHOULD END THAT DAY.
MR. BARNLUND SPENT THE EVENING AGAIN AT THE TRAVEL LODGE MOTEL. THE
NEXT MORNING, MAY 16, 1980, MR. BARNLUND AGAIN ASSISTED THE IRS REGIONAL
COUNSEL IN THE PREPARATION OF A TAX COURT CASE. MR. BARNLUND LEFT
JACKSONVILLE LATER THAT DAY AROUND 1:35 P.M. AND ARRIVED AT HIS HOME IN
ORLANDO, FLORIDA AROUND 5:00 P.M.
ON OR ABOUT MAY 30, 1980, MR. BARNLUND SUBMITTED A TRAVEL VOUCHER FOR
HIS TRAVEL EXPENSES INCURRED DURING THE MONTH OF MAY 1980.
SUBSEQUENTLY, THE IRS REJECTED THAT PORTION OF THE VOUCHER WHICH CLAIMED
EXPENSES FOR MAY 15, 1980, THE DAY MR. BARNLUND PARTICIPATED IN THE
COLLECTIVE BARGAINING NEGOTIATIONS AS A MEMBER OF THE NTEU'S NEGOTIATING
TEAM. MR. JACK FRIZZEL, AN IRS SUPERVISOR, REJECTED THE MAY 15, 1980,
PORTION OF THE CLAIM BECAUSE THE EXPENSES WERE " . . . NOT AUTHORIZED
UNDER THE CONTRACT." MR. BARNLUND HAS NEVER BEEN REIMBURSED BY THE IRS
FOR THE EXPENSES INCURRED ON MAY 15, 1980. THE NTEU, HOWEVER, DID
SUBSEQUENTLY REIMBURSE MR. BARNLUND.
MR. PIERCE TRAVELED BY AIRPLANE ON THE AFTERNOON OF MAY 14, 1980,
FROM MIAMI, FLORIDA, TO JACKSONVILLE, FLORIDA, TO PARTICIPATE IN THE MAY
15, 1980, NEGOTIATIONS. AFTER DRIVING AND PARKING HIS CAR AT THE
AIRPORT, MR. PIERCE PURCHASED A TICKET FOR A FLIGHT WHICH LEFT MIAMI AT
3:30 P.M. AND ARRIVED IN JACKSONVILLE AT 5:00 P.M. MR. PIERCE SPENT THE
NIGHT AT THE TRAVEL LODGE MOTEL IN JACKSONVILLE, FLORIDA.
THE NEXT DAY, MAY 15, 1980, MR. PIERCE PARTICIPATED IN THE
NEGOTIATIONS AS A MEMBER OF THE NTEU'S BARGAINING TEAM. FOLLOWING THE
COMPLETION OF THAT DAY'S NEGOTIATIONS, MR. PIERCE CAUGHT A FLIGHT BACK
TO MIAMI AND SUBSEQUENTLY ARRIVED AT HIS HOME AT ABOUT 5:00 P.M.
ON OR ABOUT MAY 30, 1980, MR. PIERCE SUBMITTED HIS TRAVEL VOUCHER TO
IRS FOR THE EXPENSES INCURRED AS MEMBER OF THE NTEU'S BARGAINING TEAM ON
MAY 15, 1980. ADDITIONALLY, MR. PIERCE SUBMITTED A WRITTEN REQUEST FOR
ADMINISTRATIVE TIME FOR TRAVEL. SUBSEQUENTLY, MR. RON PROWLER, AN IRS
SUPERVISOR, DENIED MR. PIERCE'S VOUCHER AND HIS REQUEST FOR THREE HOURS
OF ADMINISTRATIVE TIME ON THE GROUND THAT "THE POLICY OF THE DISTRICT IS
THAT TRAVEL TIME INCURRED TO ATTEND UNION NEGOTIATION MEETINGS MUST BE
ON THE EMPLOYEE'S TIME AND DOES NOT QUALIFY FOR ADMINISTRATIVE TIME".
MR. PIERCE WAS REQUIRED TO TAKE THREE HOURS ANNUAL LEAVE AND HAS NEVER
BEEN REIMBURSED BY THE IRS FOR HIS EXPENSES ON MAY 15, 1980, WHEN HE
PARTICIPATED IN THE NEGOTIATIONS AS A MEMBER OF THE NTEU'S BARGAINING
TEAM. MR. PIERCE WAS SUBSEQUENTLY REIMBURSED BY THE UNION FOR THE
EXPENSES HE INCURRED ON MAY 15, 1980.
PURSUANT TO AN ANNOUNCED IRS DECISION TO MERGE THE JACKSONVILLE
DISTRICT EP/EO (EMPLOYEE PLANS/EXEMPT ORGANIZATION) DIVISION INTO THE
ATLANTA DISTRICT EP/EO DIVISION, THE PARTIES AFTER AN EXCHANGE OF
LETTERS AND DISCUSSIONS AGREED TO MEET FOR NEGOTIATIONS CONCERNING THE
MERGER ON JUNE 17, 1980, IN ATLANTA, GEORGIA. PRIOR TO THE MEETING, THE
IRS WAS INFORMED THAT THE NTEU WOULD BE REPRESENTED BY MS. JOYCE
GLUCKSMAN AND MR. TIMOTHY WELSH, NTEU ATTORNEYS, MR. HAL DUBIN,
PRESIDENT OF NTEU'S ATLANTA CHAPTER, AND MR. ORVILLE GUINN, PRESIDENT OF
NTEU'S JACKSONVILLE CHAPTER.
MR. GUINN LEFT HIS HOME IN JACKSONVILLE, FLORIDA AT AROUND 5:15 A.M.
ON JUNE 17, 1980 AND CAUGHT A 7:15 A.M. AIRLINE FLIGHT TO ATLANTA,
GEORGIA. UPON ARRIVAL IN ATLANTA HE TOOK AN AIRPORT LIMOUSINE TO THE
MEETING AND ARRIVED AT THE MEETING LOCATION ABOUT 9:30 A.M. THE
NEGOTIATING MEETING COMMENCED AT 10:00 A.M. AND CONTINUED THROUGH THE
DAY WITH A BREAK FOR LUNCH. MR. GUINN LEFT THE MEETING EARLY IN THE
AFTERNOON AND TOOK A TAXI TO THE AIRPORT. MR. GUINN CAUGHT A 4:15 P.M.
FLIGHT AND ARRIVED AT HIS HOME IN JACKSONVILLE SOMETIME BETWEEN 5:00
P.M. AND 6:00 P.M.
ON OR ABOUT JUNE 30, 1980, MR. GUINN SUBMITTED A VOUCHER TO THE
JACKSONVILLE IRS DISTRICT FOR THE EXPENSES HE INCURRED ON JUNE 17, 1980.
THE VOUCHER WAS REJECTED ON THE GROUND THAT "IT IS THE POSITION OF
INTERNAL REVENUE SERVICE THAT WE ARE NOT OBLIGATED TO PAY TRAVEL
EXPENSES AND PER DIEM FOR MEMBERS OF NTEU NEGOTIATING TEAM".
SUBSEQUENTLY, AFTER BECOMING A MEMBER OF THE IRS ATLANTA DISTRICT DUE TO
THE MERGER, MR. GUINN RESUBMITTED HIS VOUCHER TO THE ATLANTA DISTRICT.
THE ATLANTA DISTRICT DENIED HIS VOUCHER FOR THE SAME REASON SET FORTH
ABOVE. MR. GUINN HAS NEVER BEEN PAID BY IRS FOR THE EXPENSES INCURRED
IN CONNECTION WITH THE JUNE 17, 1980 NEGOTIATING SESSION. THE NTEU DID,
HOWEVER, SUBSEQUENTLY REIMBURSE HIM FOR THE EXPENSES INCURRED.
WITH RESPECT TO MR. GUINN'S PARTICIPATION AT THE JUNE 17, 1980,
NEGOTIATION SESSION, MR. GUINN TESTIFIED THAT HE ACTED AS A CONSULTANT
TO THE NTEU ATTORNEYS, PASSED NOTES TO THE ATTORNEYS, CAUCUSED WITH THEM
AND ON OCCASION SPOKE OUT AT THE MEETING.
MR. TRAMMELL, WHO WAS ON THE IRS NEGOTIATING TEAM, RECALLS THAT OTHER
THAN SPEAKING OUT ONCE AT THE MEETING MR. GUINN DID LITTLE ELSE. HE DID
NOT SEE MR. GUINN PASSING NOTES OR CAUCUSING. MR. CASSIDY, ANOTHER
MEMBER OF THE IRS NEGOTIATING TEAM, TESTIFIED THAT OTHER THAN CONFERRING
WITH MR. WELSH ON ONE OCCASION, MR. GUINN DID NOT ACTUALLY PARTICIPATE
IN THE NEGOTIATIONS.
DISCUSSION AND CONCLUSIONS
ALL PARTIES CONCEDE THAT RESOLUTION OF THE INSTANT UNFAIR LABOR
PRACTICE COMPLAINT TURNS ON THE INTERPRETATION OF SECTION 7131 OF THE
STATUTE. THE PARTIES ALSO ACKNOWLEDGE THAT THE FEDERAL LABOR RELATIONS
AUTHORITY, (HEREINAFTER CALLED THE AUTHORITY), HAS ADDRESSED THE ISSUE
IN ITS INTERPRETATION AND GUIDANCE, 2 FLRA NO. 31, AND A SUBSEQUENT
DECISION IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION,
DEPT. OF TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40. HOWEVER,
RESPONDENT TAKES THE POSITION THAT THE FACTS OF THE INSTANT CASES ARE
DISTINGUISHABLE IN THAT (1) THE MAY 15, 1980 NEGOTIATIONS, IN WHICH MR.
BARNLUND AND MR. PIERCE PARTICIPATED, DID NOT QUALIFY AS "COLLECTIVE
BARGAINING NEGOTIATIONS" SINCE THEY WERE HELD PURSUANT TO A PRIOR UNFAIR
LABOR PRACTICE SETTLEMENT, AND (2) MR. GUINN'S ACTIONS OR ACTIVITIES IN
THE JUNE 17, 1980, NEGOTIATIONS WERE SO LIMITED THAT HE SHOULD BE
DISQUALIFIED FROM RECEIVING THE BENEFITS, I.E. TRAVEL AND PER DIEM
EXPENSES, ACCORDED UNION NEGOTIATORS UNDER THE AUTHORITY'S
INTERPRETATION AND GUIDANCE, SUPRA.
ADDITIONALLY, RESPONDENT TAKES THE POSITION THAT (1) THE AUTHORITY'S
INTERPRETATION AND GUIDANCE, SUPRA, IS INCORRECT, (2) THE AUTHORITY
EXCEEDED ITS STATUTORY AUTHORITY IN THE INTERPRETATION AND GUIDANCE, AND
(3) THE INTERPRETATION AND GUIDANCE IS CONTRARY TO LAW IN THAT IT
REQUIRES THE IRS TO EXPEND MONEY FOR PER DIEM AND TRAVEL ASSOCIATED WITH
NEGOTIATIONS DESPITE THE FACT THAT CONGRESS HAS NOT SPECIFICALLY
APPROPRIATED MONEY FOR THIS PURPOSE. /2/
THE GENERAL COUNSEL AND THE CHARGING PARTY, ON THE OTHER HAND, TAKE
THE POSITION THAT ALL THE NEGOTIATIONS FALL WITHIN THE AMBIT OF THE
AUTHORITY'S INTERPRETATION AND GUIDANCE AND THE AUTHORITY'S DECISION IN
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, SUPRA. IN SUCH
CIRCUMSTANCES, IT IS THEIR FURTHER POSITION THAT THE THREE EMPLOYEES
INVOLVED HEREIN ARE ENTITLED TO OFFICIAL TIME AS WELL AS PER DIEM AND
TRAVEL EXPENSES. ADDITIONALLY, THEY TAKE THE POSITION THAT MR. GUINN
DID PARTICIPATE IN THE JUNE 17, 1980, NEGOTIATIONS AND, THAT IN ANY
EVENT, THE QUANTUM OF HIS PARTICIPATION IN NOT CONTROLLING.
IN THE INTERPRETATION AND GUIDANCE AND THE DECISION IN BUREAU OF
ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, THE AUTHORITY CONCLUDED
THAT EMPLOYEES ARE ENTITLED TO OFFICIAL TIME AS WELL AS PER DIEM AND
TRAVEL EXPENSES WHILE PERFORMING UNION REPRESENTATIONAL RESPONSIBILITIES
IN THE AREA OF COLLECTIVE BARGAINING NEGOTIATIONS. ACCORDINGLY, IF THE
MEETINGS HERE INVOLVED FALL WITHIN THE AMBIT OF "NEGOTIATION OF A
COLLECTIVE BARGAINING AGREEMENT", THEN THE THREE EMPLOYEES ARE ENTITLED
TO OFFICIAL TIME AS WELL AS PER DIEM AND TRAVEL EXPENSES.
CONTRARY TO THE CONTENTION OF THE RESPONDENT, I FIND THAT THE MEETING
HELD ON MAY 15, 1980, CONSTITUTED "NEGOTIATION OF A COLLECTIVE
BARGAINING AGREEMENT" WITHIN THE MEANING OF SECTION 7131 OF THE STATUTE.
/3/ THE MERE FACT THAT THE NEGOTIATIONS WERE A PRODUCT OF A PRIOR
UNFAIR LABOR PRACTICE SETTLEMENT IS OF NO IMPORT. IT IS THE CHARACTER
OF THE MEETING WHICH IS DETERMINATIVE NOT THE ORIGIN. TO HOLD
OTHERWISE, AS URGED BY RESPONDENT, WOULD ALLOW AGENCIES OR ACTIVITIES TO
ESCAPE THE PAYMENT OF TRAVEL AND PER DIEM EXPENSES INCURRED BY UNION
REPRESENTATIVES DURING COLLECTIVE BARGAINING NEGOTIATIONS HELD PURSUANT
TO AUTHORITY ORDERS IN UNFAIR LABOR PRACTICE PROCEEDINGS. UNDER THE
RESPONDENT'S THEORY, THIS RESULT WOULD HAVE TO FOLLOW BECAUSE THE
SUBSEQUENT BARGAINING WOULD NOT BE BASED UPON THE MUTUAL OBLIGATION OF
THE PARTIES, BUT RATHER THE SINGLE OBLIGATION IMPOSED ON THE RESPONDENT
BY THE AUTHORITY'S ORDER. SUCH A RESULT WOULD ENCOURAGE ACTIVITIES AND
AGENCIES TO DEFY THE STATUTE AND ONLY BARGAIN WITH A UNION AFTER AN
UNFAIR LABOR PRACTICE FINDING AND AN APPROPRIATE ORDER FROM THE
AUTHORITY.
WITH RESPECT TO RESPONDENT'S REMAINING DEFENSE CONCERNING THE AMOUNT
OF PARTICIPATION BY MR. GUINN IN THE JUNE 17, 1980, NEGOTIATIONS, I FIND
SUCH DEFENSE OR POSITION TO BE WITHOUT MERIT. IN THIS LATTER CONTEXT I
NOTE THAT MR. GUINN DID PARTICIPATE IN THE NEGOTIATIONS AND THAT, IN ANY
EVENT, NEITHER THE AUTHORITY NOR THE STATUTE SETS FORTH ANY MINIMUM
STANDARD OF PARTICIPATION WHICH MUST BE MET BEFORE A UNION NEGOTIATOR IS
ENTITLED TO BE PAID THE TRAVEL AND PER DIEM EXPENSES INCURRED IN THE
NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT.
IN VIEW OF THE FOREGOING CONCLUSIONS, I FIND THAT THE RESPONDENT
VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE STATUTE BY VIRTUE OF ITS
ACTIONS IN REFUSING TO PROVIDE NTEU REPRESENTATIVES CALVIN BARNLUND,
WAYNE PIERCE AND ORVILLE GUINN OFFICIAL TIME AND/OR PER DIEM AND TRAVEL
EXPENSES IN CONNECTION WITH THEIR PARTICIPATION IN COLLECTIVE BARGAINING
NEGOTIATIONS HELD ON MAY 15 AND JUNE 17, 1980, RESPECTIVELY.
CONTRARY TO THE ALLEGATIONS OF THE COMPLAINT AND IN THE ABSENCE OF
ANY COGENT ARGUMENT IN SUPPORT THEREOF, I FIND THAT THE RESPONDENT'S
ACTIVITIES DESCRIBED IN DETAIL ABOVE, DID NOT ALSO CONSTITUTE A SEPARATE
VIOLATION OF SECTION 7116(A)(5) OF THE STATUTE. ACCORDINGLY, I SHALL
RECOMMEND THAT THIS ALLEGATION OF THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY.
HAVING FOUND AND CONCLUDED THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1) AND (8) OF THE STATUTE, I RECOMMEND THAT THE AUTHORITY ISSUE
THE FOLLOWING:
ORDER
PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7118(A)(7)(A), AND SECTION
2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. SECTION
2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF
TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE AND ATLANTA DISTRICTS
SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE CALVIN BARNLUND, WAYNE PIERCE AND
ORVILLE GUINN OR ANY
AGENCY EMPLOYEES, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY
EMPLOYEES UNION, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING NEGOTIATIONS OF A
COLLECTIVE BARGAINING AGREEMENT,
OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY TRAVEL TIME
AS OCCURS DURING THE
EMPLOYEES' REGULAR WORK HOURS AND WHEN THE EMPLOYEE WOULD OTHERWISE
BE IN A WORK OR PAID LEAVE
STATUS. IN ADDITION, NECESSARY TRANSPORTATION AND PER DIEM EXPENSES
SHALL BE PAID BY THE
EMPLOYING ACTIVITY.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) PROVIDE UNION REPRESENTATIVE WAYNE PIERCE OFFICIAL TIME FOR THE
PERFORMANCE OF HIS
REPRESENTATIONAL DUTIES ON MAY 14 AND 15, 1980, AND MAKE HIM WHOLE
FOR THE ANNUAL LEAVE HE MAY
HAVE UTILIZED ON SUCH DATED, AND PAY TO WAYNE PIERCE AND UNION
REPRESENTATIVES CALVIN BARNLUND
AND ORVILLE GUINN WHATEVER TRAVEL AND PER DIEM EXPENSES AS EMPLOYEE
ENGAGED IN OFFICIAL AGENCY
OR ACTIVITY BUSINESS WOULD BE ENTITLED.
(B) POST AT ITS VARIOUS OFFICES IN THE ATLANTA AND JACKSONVILLE
DISTRICTS WHERE IN UNIT
EMPLOYEES ARE LOCATED, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX". COPIES OF SAID
NOTICE, TO BE FURNISHED BY THE REGIONAL DIRECTOR FOR REGION 4, AFTER
BEING SIGNED BY AN
AUTHORIZED REPRESENTATIVE, SHALL BE POSTED BY REPRESENTATIVES OF
JACKSONVILLE AND ATLANTA
DISTRICTS IMMEDIATELY UPON RECEIPT THEREOF AND BE MAINTAINED BY SUCH
REPRESENTATIVES FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO
INSURE THAT SAID NOTICES
ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE
OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE 7116(A)(5) ALLEGATION OF THE COMPLAINT
BE, AND IT HEREBY IS, DISMISSED.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 23, 1981
WASHINGTON, D.C.
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN
ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO PROVIDE TO CALVIN BARNLUND, WAYNE
PIERCE AND ORVILLE GUINN OR ANY AGENCY EMPLOYEES, WHILE ENGAGED IN
REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, DURING NEGOTIATIONS OF A COLLECTIVE BARGAINING
AGREEMENT, OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY
TRAVEL TIME AS OCCURS DURING THE EMPLOYEE'S REGULAR WORK HOURS AND WHEN
THE EMPLOYEES WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN
ADDITION, NECESSARY TRANSPORTATION AND PER DIEM EXPENSES SHALL BE PAID
BY THE EMPLOYING ACTIVITY OR AGENCY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL PROVIDE UNION REPRESENTATIVES CALVIN BARNLUND, WAYNE PIERCE
AND ORVILLE GUINN OFFICIAL TIME FOR THE PERFORMANCE OF THEIR
REPRESENTATIONAL DUTIES ON MAY 14, 15 AND JUNE 17, 1980, RESPECTIVELY,
AND MAKE THEM WHOLE FOR THE ANNUAL LEAVE THEY UTILIZED ON THE ABOVE
DATES AND PAY TO CALVIN BARNLUND, WAYNE PIERCE AND ORVILLE GUINN
WHATEVER TRAVEL AND PER DIEM EXPENSES EMPLOYEES ENGAGED IN OFFICIAL
AGENCY OR ACTIVITY BUSINESS WOULD BE ENTITLED.
(AGENCY OR ACTIVITY)
DATED:
BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FOR THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION 4, WHOSE
ADDRESS IS: 1776 PEACHTREE STREET, N.W., SUITE 501, NORTH WING,
ATLANTA, GA 30309, AND WHOSE TELEPHONE NUMBER IS 404-881-2324.
--------------- FOOTNOTES$ ---------------
/1/ IN THE ABSENCE OF ANY OBJECTION, CHARGING PARTY'S MOTION TO
CORRECT TRANSCRIPT IS HEREBY GRANTED.
/2/ AS AN ADMINISTRATIVE LAW JUDGE, I AM OBLIGATED TO FOLLOW THE
AUTHORITY'S PRONOUNCEMENTS AND DECISIONS UNTIL SUCH TIME AS THEY ARE
OVERRULED BY HIGHER AUTHORITY. ACCORDINGLY, INASMUCH AS THE LATTER
THREE CONTENTIONS OF RESPONDENT EITHER ATTACK THE AUTHORITY'S
INTERPRETATION AND GUIDANCE AND/OR HAVE BEEN CONSIDERED AND REJECTED BY
THE AUTHORITY IN A PRIOR DECISION, I.E. BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, WESTERN REGION, SUPRA, I AM CONSTRAINED TO, AND DO HEREBY,
REJECT THEM.
/3/ THE RESPONDENT, CITING THE WORDS "MUTUAL OBLIGATION" IN THE
DEFINITION OF "COLLECTIVE BARGAINING" SET FORTH IN SECTION 7103(A)(12)
OF THE STATUTE, TAKES THE POSITION THAT THE MAY 15, 1980 NEGOTIATIONS
WERE NOT COLLECTIVE BARGAINING NEGOTIATIONS WITHIN THE MEANING OF
SECTION 7131 SINCE THE PRIOR SETTLEMENT ONLY IMPOSED THE OBLIGATION TO
BARGAIN ON RESPONDENT. ACCORDING TO RESPONDENT, IN THE ABSENCE OF A
"MUTUAL OBLIGATION" THE NEGOTIATIONS DID NOT CONSTITUTE "COLLECTIVE
BARGAINING" WITHIN THE MEANING OF SECTION 7131.